J-S38029-16

* Judge Jenkins did not participate in the consideration or decision of this 

case. This case is decided by a two-judge panel pursuant to 210 Pa. Code 

§ 65.5(C)(2)(a). 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY HOBAN,

Appellant No. 2288 EDA 2015

Appeal from the Order Entered July 17, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002389-1998

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS JJ.*

MEMORANDUM BY OLSON, J.: FILED JULY 18, 2016

Appellant, Anthony Hoban, appeals pro se from the order entered on 

July 17, 2015 denying his petition for a writ of habeas corpus. We affirm.

The relevant factual background and procedural history of this case 

are as follows. On January 12, 1999, Appellant pled guilty to burglary,1theft 

by unlawful taking,2carrying a firearm without a license,3and possession of 

a controlled substance.4 On April 29, 1999, Appellant was sentenced to an 

aggregate term of five to ten years’ imprisonment. For reasons that are 

 

1 18 Pa.C.S.A. § 3502(a).

2 18 Pa.C.S.A. § 3921(a).

3 18 Pa.C.S.A. § 6106(a)(1).

4 35 P.S. § 780-113(a)(16). 
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unclear in the record, Appellant’s maximum sentence date was calculated as 

March 2, 2019. 

In August 2012, Appellant was granted pre-release. On June 17, 

2013, Appellant was notified by the Pennsylvania Board of Probation and 

Parole (“PBPP”) that, pursuant to 2012 P.L. 1050 (“Act 122”), he was no 

longer eligible for pre-release. Thus, Appellant was re-committed to the 

State Correctional Institution at Fayette (“SCI-Fayette”). 

Appellant filed an administrative appeal, and the PBPP denied that 

appeal. Appellant thereafter filed a petition for review in the Commonwealth 

Court of Pennsylvania. The Commonwealth Court dismissed the petition. 

Hoban v. PBPP, 300 C.D. 2015 (Pa. Cmwlth. Mar 24, 2015) (per curiam). 

On April 13, 2015, Appellant filed the instant petition for a writ of habeas 

corpus. On July 17, 2015, the trial court denied the petition. This timely 

appeal followed. 

Appellant presents two issues for our review:

1. Does not a [c]onstitutionally protected liberty interest exist[] 

where Appellant was released into society on pre-release and 

then through no fault of his own sent back to prison without 

any procedural safeguards, due to the eradication of pre–

release pursuant to Act 122?

2. Did not this [s]tate action violate Appellant’s [d]ue [p]rocess 

rights under the United States and Pennsylvania 

Constitutions?

Appellant’s Brief at 5. 
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Preliminarily, we address the Commonwealth’s contention that because 

Appellant lacked any liberty interest in his pre-release status, the trial court 

and this Court lack jurisdiction over the instant case. Subject matter 

jurisdiction is a pure question of law, therefore our standard of review is de 

novo and our scope of review is plenary. See Roman v. McGuire Mem’l, 

127 A.3d 26, 30 (Pa. Super. 2015), appeal denied, 134 A.3d 57 (Pa. 2016) 

(citation omitted).

The Commonwealth’s argument conflates subject matter jurisdiction 

with the merits of the underling claim. “Generally, subject matter 

jurisdiction [is] defined as the court’s power to hear cases of the class to 

which the case at issue belongs.” Paluti v. Cumberland Coal LP, 122 A.3d 

418, 423 (Pa. Super. 2015) (citation omitted). On the other hand, the 

merits of the underlying claim relate to whether or not a litigant is entitled to 

relief based upon the law and the factual circumstances of that case. 

It is well-settled that the courts of common pleas of this 

Commonwealth possess subject matter jurisdiction to consider habeas 

corpus petitions. 42 Pa.C.S.A. § 6502(a). Furthermore, venue is proper in 

the court of common pleas which originally ordered the petitioner’s 

confinement. Pa.R.Crim.P. 108(a). Thus, if Appellant’s filing were a proper 

habeas corpus petition, the trial court possessed subject matter jurisdiction 

to reach the merits of the petition. On the other hand, if Appellant’s petition 

is properly considered a petition for review within the original jurisdiction of 
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the Commonwealth Court or a Post-Conviction Relief Act (“PCRA”) petition, 

the trial court lacked subject matter jurisdiction to reach the merits of the 

petition.

We first consider whether the Commonwealth Court had exclusive 

jurisdiction over Appellant’s petition. The Commonwealth Court possesses 

exclusive, original jurisdiction over “civil actions or proceedings [ ... a]gainst 

the Commonwealth government, including any officer thereof, acting in his 

official capacity except[ ] actions or proceedings in the nature of 

applications for a writ of habeas corpus or post-conviction relief not ancillary 

to proceedings within the appellate jurisdiction of the court[.]” 42 Pa.C.S.A. 

§ 761(a)(1). In a challenge to an action taken by the PBPP, the nature of 

the allegations of error and the relief sought determine whether the case 

comes within the Commonwealth Court’s exclusive original jurisdiction. 

McGriff v. PBPP, 809 A.2d 455, 458 (Pa. Cmwlth. 2002), aff’d, McGriff v. 

PBPP, 838 A.2d 564 (Pa. 2003) (per curiam). 

We find instructive our Supreme Court’s decision in Brown v. PBPP, 

81 A.3d 814 (Pa. 2013) (per curiam). In Brown, our Supreme Court held 

that the petitioner’s request to be released from prison was correctly 

considered a habeas corpus petition. Id. at 815. Our Supreme Court noted 

that Brown “principally [was] testing the legality of his commitment and 

detention[.]” Id. (internal alteration, quotation marks, and citations 

omitted). Our Supreme Court reasoned that this type of relief made the 
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petition fall under the guise of habeas corpus and not under the 

Commonwealth Court’s jurisdiction. Id. Therefore, our Supreme Court 

ordered the petition transferred to the appropriate court of common pleas.

In this case, Appellant is seeking his release from prison. He argues 

that his confinement in SCI-Fayette is illegal because the elimination of the 

pre-release program pursuant to Act 122 deprived him of due process of 

law. Although this differs from Brown’s argument that he was illegally 

detained in a state correctional institution because of the lack of a written 

sentencing order, the gravamen of both cases involves the contention that 

the petitioners were unlawfully detained in a state correctional institution. 

The exact reason for that illegal detention is immaterial to determining if the 

petition properly lies in the Commonwealth Court’s original jurisdiction. 

Accordingly, we conclude that, like in Brown, the Commonwealth Court did 

not possess exclusive, original jurisdiction over Appellant’s petition. 

We next turn to whether the trial court should have considered 

Appellant’s filing a PCRA petition. The PCRA

provides for an action by which persons convicted of crimes they 

did not commit and persons serving illegal sentences may obtain 

collateral relief. The action established in [the PCRA] shall be 

the sole means of obtaining collateral relief and encompasses all 

other common law and statutory remedies for the same purpose 

that exist when [the PCRA] takes effect, including habeas corpus

and coram nobis.

42 Pa.C.S.A. § 9542. Our Supreme Court has explained that 

[t]he plain language of Section 9542 demonstrates quite clearly 

that the General Assembly intended that claims that could be 
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brought under the PCRA must be brought under that Act. No 

other statutory or common law remedy “for the same purpose” 

is intended to be available; instead, such remedies are explicitly 

“encompassed” within the PCRA.

Commonwealth v. Descardes, 2016 WL 1249964, at *5 (Pa. Mar. 29, 

2016) (internal alteration and citation omitted; emphasis removed). 

In this case, Appellant’s claim – that his detention violates the Due 

Process Clause – is not cognizable under the PCRA. In order for a claim to 

be cognizable under the PCRA, a petitioner must be challenging his 

underlying conviction and/or sentence. See id., citing Commonwealth v. 

Peterkin, 722 A.2d 638, 640-641 (Pa. 1998). Appellant is not challenging 

his underlying conviction or sentence. He concedes that his conviction and 

sentence were lawful. Instead, he challenges the revocation of his prerelease status. The absence of any challenge to Appellant’s conviction and 

sentence becomes plain when one acknowledges that Act 122, the legislative 

enactment that eliminated the pre-release program, did not exist when 

Appellant entered his guilty plea and received his sentence nor does it 

purport to alter or impair the statutory authority underlying Appellant’s 

guilty plea or punishment. Therefore, the trial court properly did not 

consider Appellant’s petition under the PCRA. As Appellant’s challenge is not

within the original jurisdiction of the Commonwealth Court nor is it within 

the confines of the PCRA, Appellant’s filing is properly considered a habeas 

corpus petition. The Court of Common Pleas of Delaware County had 

jurisdiction over the petition and venue was proper in that county. 
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Accordingly, we reject the Commonwealth’s argument that the trial court 

(and thus this Court) lacked jurisdiction to consider the merits of Appellant’s 

habeas corpus petition.

Turning to the merits of Appellant’s two issues raised on appeal, he 

argues that Act 122 denied him due process of law as it essentially revoked 

his pre-release status without a hearing or any other procedural safeguard. 

As the Commonwealth Court explained:

In order to determine whether a constitutional violation has 

occurred, a determination must initially be made that a 

protected liberty interest exists and, if so, what process is due. 

Hagan v. Tirado, 896 F.Supp. 990 (C.D. Cal. 1995). Protected 

liberty interests may be created by either the Due Process 

Clause itself or by state law. Sandin v. Conner, 515 U.S. 472 

(1995); Wolff v. McDonnell, 418 U.S. 539 (1974). Where a 

liberty interest is not created by the Due Process Clause itself:

States may under certain circumstances create liberty 

interests which are protected by the Due Process Clause. 

But these interests will be generally limited to freedom 

from restraint which, while not exceeding the sentence in 

such an unexpected manner as to give rise to protection 

by the Due Process Clause of its own force, see, e.g., 

Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to 

mental hospital), and Washington v. Harper, 494 U.S. 

210, 221-222 (1990) (involuntary administration of 

psychotropic drugs), nonetheless imposes atypical and 

significant hardship on the inmate in relation to the 

ordinary incidents of prison life.

Sandin, 515 U.S. at 483-484. In Sandin, the prisoner, Conner, 

complained that his segregation in a special holding unit for a 

disciplinary misconduct that was later expunged violated his due 

process rights. The [Supreme Court of the United States] held 

that “Conner’s discipline in segregated confinement did not 

present the type of atypical, significant deprivation in which a 

state might conceivably create a liberty interest” because it did 

not exceed other types of segregated confinement and, due to 
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the restrictions on prisoners outside of confinement at that 

prison, did not work a major disruption in his environment. Id.

at 485.

In Meachum v. Fano, 427 U.S. 215, 224 (1976), which 

involved transfers from a medium security prison to a maximum 

security prison, the Supreme Court [of the United States] held 

that the Due Process Clause does not protect every change in 

the conditions of confinement having a substantial adverse 

impact on the prisoner. Because the Due Process Clause is not 

so broad, it does not create a liberty interest in prisoners to be 

free from intrastate prison transfers. Id. at 225. Moreover, the 

[C]ourt stated, such transfers are within the normal limits of 

custody which the conviction authorizes the state to impose. Id.

Just as in Sandin and Meachum, the Due Process Clause does 

not create a liberty interest in a prisoner’s participation in a prerelease program. [Lawson v. Com., Dep't of Corr., 539 A.2d 

69, 72 (Pa. Cmwlth. 1988)]. There is also no state-created 

liberty interest in the pre-release status that is protected by the 

Due Process Clause because the revocation is not the type of 

deprivation of the freedom from restraint required by the Court 

in Sandin. See Hagan, 896 F.Supp. at 995 (if an inmate 

placed in disciplinary segregation has no due process right to 

procedures established in state regulations, a fortiori an inmate 

placed in administrative segregation has no such due process 

right). The transfer of a prisoner into an SCI imposes no 

“atypical and significant hardship on the inmate in relation to the 

ordinary incidents of prison life” because an SCI is the place all 

prisoners ordinarily expect to serve their term, and there was 

nothing about [Wilder’s] placement or conditions in SCI-Camp 

Hill that was different from other residents of SCI-Camp Hill.

Wilder v. Dep’t of Corr., 673 A.2d 30, 32-33 (Pa. Cmwlth. 1996), appeal 

denied, 681 A.2d 1344 (Pa. 1996) (internal alterations omitted); see Myers 

v. Ridge, 712 A.2d 791, 795 (Pa. Cmwlth. 1998), appeal denied, 742 A.2d 

173 (Pa. 1999).

The United States Court of Appeals for the Third Circuit has similarly 

held that an inmate in Pennsylvania has “neither an independent due 
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process nor a state-created liberty interest in his revoked pre[-]release 

status.” Powell v. Weiss, 757 F.3d 338, 346 (3d Cir. 2014). Without a 

liberty interest in the revocation of his pre-release status, Appellant is 

unable to prove that his current detention in SCI-Fayette violates his due 

process rights. Accordingly, we affirm the denial of relief.5 See In re 

Payne, 129 A.3d 546, 571 (Pa. Super. 2015) (citation omitted) (we may 

affirm on any basis). 

Order affirmed. 

Judge Jenkins did not participate in the consideration or decision of 

this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2016

 

5 Appellant relies heavily on Young v. Harper, 520 U.S. 143 (1997), in 

support of his argument that he had a liberty interest in his pre-release 

status. Young, however, is distinguishable from the case at bar. Under the 

Oklahoma pre-parole program at issue in Young, there was an implicit 

understanding that pre-parole would not be revoked if the pre-parolee lived 

up to his or her pre-parole conditions. Id. at 148. On the other hand, 

under Pennsylvania’s pre-release program, an individual could have his prerelease revoked for purely administrative reasons. See 37 Pa. Code 

§ 94.3(a)(10).